Jacobi v. Griffiths, [1999] 2 S.C.R. 570

Randal Craig Jacobi and Jody Marlane Saur Appellants

v.

Boys’ and Girls’ Club of Vernon and

Harry Charles Griffiths Respondents

and

The Canadian Conference of Catholic Bishops

and Wunnumin Lake First Nation Interveners

Indexed as: Jacobi v. Griffiths

File No.: 26041.

1998: October 6; 1999: June 17.

Present: L’Heureux‑Dubé, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Torts -- Vicarious liability -- Intentional torts -- Sexual abuse -- Children sexually abused by employee of boys’ and girls’ club -- Most of assaults occurring at employee’s home -- Whether club vicariously liable for employee’s sexual assault of children.

Employment law -- Liability of employers -- Intentional torts of employees -- Children sexually abused by employee of boys’ and girls’ club -- Most of assaults occurring at employee’s home -- Whether club vicariously liable for employee’s tortious conduct.

The respondent Boys’ and Girls’ Club, a non-profit organization incorporated under the Societies Act, employed the respondent G as Program Director. The Club required G to supervise volunteer staff and organize recreational activities and the occasional outing. G was also encouraged to form friendships and a positive rapport with the children at the Club. Both of the appellants testified that all of their friends and activities centred on the Club. There was essentially a single incident of sexual assault by G involving the male appellant and one incident of sexual intercourse involving the female appellant at G’s home outside working hours following several lesser incidents, including one incident of sexual touching in the Club van. The disclosure of these events was first made in 1992, some ten years after they occurred. After having his employment terminated following a police investigation, G pled guilty to 14 counts of sexual assault involving the appellants and other children. The appellants sought civil damages against the Club on the legal theory that it should be held vicariously liable for the intentional sexual abuse by its employee, as well as directly liable to the appellants for negligence and breach of fiduciary duty. The trial judge addressed only the issue of vicarious liability and held the Club vicariously liable for the assaults committed by G. The Court of Appeal allowed the Club’s appeal.

Held (L’Heureux-Dubé, McLachlin and Bastarache JJ. dissenting): The appeal should be dismissed and the matter sent back to trial for a determination as to whether the respondent Club is directly liable under a fault-based cause of action.

Per Cory, Iacobucci, Major and Binnie JJ.: The companion decision to this appeal, Bazley v. Curry (hereinafter “Children’s Foundation”), sets out the two-step process for determining when an unauthorized act of an employee is sufficiently connected to the employer’s enterprise that vicarious liability should be imposed. A court should first determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.

Under the first phase of the Children’s Foundation analysis, the case law, reflecting policy judgments by various courts over many years and across many different jurisdictions, clearly suggests that the imposition of no-fault liability in this case would overshoot the existing judicial consensus about appropriate limits of an employer’s no-fault liability. Courts have consistently held that mere opportunity to commit a tort does not suffice to impose no-fault liability. Even where the job-created opportunity is accompanied (as in the present appeal) by privileged access to the victim, Canadian courts have not thought there to be a sufficiently strong connection between the type of risk created and the actual assault that occurred. The result has been otherwise, and the employer held vicariously liable, in sexual assault cases where the strong connection between the employment and the assault was enhanced by a combination of job-created power and job-created intimacy, neither of which was present in this case to the requisite degree.

As to the second phase of the analysis set out in Children’s Foundation, the imposition of no-fault liability is justified by the policy considerations of compensation and deterrence. The theory is that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise. Non-profit enterprises, however, lack an efficient mechanism to “internalize” such costs. They do not operate in a market environment and have little or no ability to absorb the cost of such no-fault liability by raising prices to consumers in the usual way to spread the true cost of “doing business”. Deterrence, which is another key policy reason supporting vicarious liability, also has to be assessed with some sensitivity to context, including the nature of the conduct sought to be deterred, the nature of the liability sought to be imposed, and the type of enterprise sought to be rendered liable. Given the weakness of the policy justification for the expansion of vicarious liability to non-profit organizations, the respondent is entitled to insist that the requirement of a “strong connection” between the enterprise risk and the sexual assault be applied with serious rigour.

To find a strong connection, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. In this case the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded G to abuse whatever power he may have had was slight. The sexual abuse only became possible when G managed to subvert the public nature of the activities. The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor. It is not enough to postulate a series of steps each of which might not have happened “but for” the previous steps. Where, as here, the chain of events constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify “no fault” liability.

Per L’Heureux-Dubé, McLachlin and Bastarache JJ. (dissenting): Since the case law on the issue is inconclusive and unsatisfactory, it must be decided whether vicarious liability should be imposed in light of the considerations of principle and policy discussed in Bazley v. Curry (hereinafter “Children’s Foundation”). Applying the test set out, it must be decided whether G’s intentional torts were sufficiently linked to his employment duties to justify the imposition of vicarious liability. The evidence and the findings of the trial judge in this case establish that the employment materially and significantly enhanced the risk of the sexual assaults that occurred. Almost all of the factors listed in Children’s Foundation point in favour of liability. The first factor is the opportunity that the enterprise afforded G to perpetrate his attacks. An environment into which children are entrusted not just for adult supervision, but for adult mentoring, is one highly charged with potential for an abuse of that trust. G was authorized to interact with the children at the Club, and it seems logical to conclude that he was authorized to interact with the children outside the presence of other adults. While a second factor, whether these acts could be said to further the employer’s aims, militates against finding liability, this factor is of little significance here since it can be assumed that intentional torts do not further employers’ ends. With respect to the third factor, whether the wrongful act was related to intimacy inherent in the employer’s enterprise, the Club went further, in its nurturing activities, than encouraging rapport with a role model; it positively encouraged an intimate relationship to develop between G and his young charges. The risk associated with this position of trust was exacerbated by the troubled and vulnerable nature of many of the Club’s clients. The rationales of risk allocation and deterrence are engaged, and liability may more readily be imposed. With respect to the fourth consideration, the extent of power conferred on the employee in relation to the victim, the trial judge’s finding that G exercised a “god-like” authority over his victims shows that this factor also points toward liability. The fifth factor is the vulnerability of potential victims to the wrongful exercise of employees’ power. It goes without saying that children are vulnerable as potential victims of intentional torts such as sexual abuse. These children, troubled adolescents, were more vulnerable than most. While G’s assaults, other than the van incident, all took place off site (at his home) and after hours, it was his fostering of trust at the Club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts. It is not the mere coincidence of location and interaction that led G to prey upon his victims -- it is rather that he worked at a job where he was put in a special position of trust and power over vulnerable people and used that position to carry out an abuse of the power with which he was conferred to carry out his duties. It is this connection that justifies the Club being held liable to bear the costs of the losses inflicted by G. The policy rationales underpinning vicarious liability fair compensation and deterrence support this conclusion.

Cases Cited

By Binnie J.

Distinguished: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, aff’g (1997), 1997 CanLII 10834 (BC CA), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry); disapproved: S.T. v. North Yorkshire County Council, [1999] I.R.L.R. 98; referred to: Boothman v. Canada, 1993 CanLII 2949 (FC), [1993] 3 F.C. 381; The Queen v. Levy Brothers Co., 1961 CanLII 58 (SCC), [1961] S.C.R. 189; E.D.G. v. Hammer, 1998 CanLII 15064 (BC SC), [1998] B.C.J. No. 992 (QL); Q. v. Minto Management Ltd. (1985), 1985 CanLII 2103 (ON SC), 15 D.L.R. (4th) 581, aff’d (1986), 1986 CanLII 2518 (ON CA), 34 D.L.R. (4th) 767; Goodwin v. Commission scolaire Laurenval, [1991] R.R.A. 673, 8 C.C.L.T. (2d) 267; B. (J.-P.) v. Jacob (1998), 1998 CanLII 12231 (NB CA), 166 D.L.R. (4th) 125; Barrett v. The Ship “Arcadia” (1977), 1977 CanLII 1728 (BC SC), 76 D.L.R. (3d) 535; Boykin v. District of Columbia, 484 A.2d 560 (1984); Lourim v. Swensen, 936 P.2d 1011 (1997); Ciarochi v. Boy Scouts of America, Inc., Alaska Sup. Ct., Ketchikan Registry IKE-89-42 CI, August 6, 1990; Lloyd v. Grace, Smith & Co., [1912] A.C. 716; Lockhart v. Canadian Pacific Railway Co., 1941 CanLII 5 (SCC), [1941] S.C.R. 278; W. W. Sales Ltd. v. City of Edmonton, 1942 CanLII 27 (SCC), [1942] S.C.R. 467; McDonald v. Mombourquette (1996), 1996 CanLII 8707 (NS CA), 152 N.S.R. (2d) 109, leave to appeal refused, [1997] 2 S.C.R. xi; Destefano v. Grabrian, 763 P.2d 275 (1988); Tichenor v. Roman Catholic Church of the Archdiocese of New Orleans, 32 F.3d 953 (1994); Milla v. Tamayo, 232 Cal. Rptr. 685 (1986); Canadian Pacific Railway Co. v. Lockhart, 1942 CanLII 366 (UK JCPC), [1942] A.C. 591; Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241 (1987); Rabon v. Guardsmark, Inc., 571 F.2d 1277 (1978); Webb by Harris v. Jewel Companies, Inc., 485 N.E.2d 409 (1985); Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (1992); Noto v. St. Vincent’s Hospital and Medical Center of New York, 537 N.Y.S.2d 446 (1988); A. (C.) v. Critchley (1998), 1998 CanLII 9129 (BC CA), 166 D.L.R. (4th) 475; D.C.B. v. Boulianne, [1996] B.C.J. No. 2183 (QL); B. (K.L.) v. British Columbia (1998), 51 B.C.L.R. (3d) 1; B. (W.R.) v. Plint (1998), 1998 CanLII 13299 (BC SC), 161 D.L.R. (4th) 538; K. (W.) v. Pornbacher (1997), 1997 CanLII 12565 (BC SC), 32 B.C.L.R. (3d) 360; Doe v. Samaritan Counseling Center, 791 P.2d 344 (1990); Mary M. v. City of Los Angeles, 814 P.2d 1341 (1991); John R. v. Oakland Unified School District, 769 P.2d 948 (1989); London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299; Bradley Egg Farm, Ltd. v. Clifford, [1943] 2 All E.R. 378; Dodd v. Cook, 1956 CanLII 133 (ON CA), [1956] O.R. 470; Olinski v. Johnson (1997), 1997 CanLII 603 (ON CA), 32 O.R. (3d) 653; Armagas Ltd. v. Mundogas SA, [1986] 2 All E.R. 385.

By McLachlin J. (dissenting)

Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, aff’g (1997), 1997 CanLII 10834 (BC CA), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry); McDonald v. Mombourquette (1996), 1996 CanLII 8707 (NS CA), 152 N.S.R. (2d) 109.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46, s. 271.

Societies Act, R.S.B.C. 1960, c. 362, s. 3(1).

Authors Cited

Atiyah, P. S. Vicarious Liability in the Law of Torts. London: Butterworths, 1967.

Baty, T. Vicarious Liability. Oxford: Clarendon Press, 1916.

Flannigan, Robert. “The Liability Structure of Nonprofit Associations: Tort and Fiduciary Liability Assignments” (1998), 77 Can. Bar Rev. 73.

Fleming, John G. The Law of Torts, 9th ed. Sydney: LBC Information Services, 1998.

Fridman, G. H. L. The Law of Torts in Canada, vol. 2. Toronto: Carswell, 1990.

Laski, Harold J. “The Basis of Vicarious Liability” (1916), 26 Yale L.J. 105.

Salmond and Heuston on the Law of Torts, 21st ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1996.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 1997 CanLII 12485 (BC CA), 31 B.C.L.R. (3d) 1 (sub nom. T. (G.) v. Griffiths), 89 B.C.A.C. 126, 145 W.A.C. 126, [1997] 5 W.W.R. 203, 27 C.C.E.L. (2d) 307, [1997] B.C.J. No. 695 (QL) (sub nom. G.J. v. Griffiths), reversing a decision of the British Columbia Supreme Court, [1995] B.C.J. No. 2370 (QL), finding the respondent Club vicariously liable for intentional sexual abuse by one of its employees. Appeal dismissed, L’Heureux-Dubé, McLachlin and Bastarache JJ. dissenting.

Christopher R. Penty, for the appellants.

Gordon G. Hilliker and Julie D. Fisher, for the respondent Boys’ and Girls’ Club of Vernon.

William J. Sammon, for the intervener the Canadian Conference of Catholic Bishops.

Susan M. Vella and Jonathan Eades, for the intervener Wunnumin Lake First Nation.

The reasons of L’Heureux-Dubé, McLachlin and Bastarache JJ. were delivered by

//McLachlin J.//

McLachlin J. (dissenting) ^__

Introduction

[1] This case involves claims for damages by a brother and sister against the Vernon Boys’ and Girls’ Club (“the Club”) for incidents of sexual assault by one of the Club’s employees. The plaintiffs sought damages against the Club on the legal theory that it should be held vicariously liable for the intentional sexual abuse of its employee. The appeal from the trial judge’s finding that the Club was vicariously liable was heard before the British Court of Appeal as a companion appeal to the Children’s Foundation appeal ((1997), 1997 CanLII 10834 (BC CA), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry)).

[2] My colleague Binnie J. adopts the test set out in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 (hereinafter “Children’s Foundation”), which the reasons in this case do not alter. However, he finds that on the facts in this case, that test is not met. I cannot, with respect, agree. The findings of fact of the trial judge, who concluded the Club should be held vicariously liable, confirm the same conclusion on the test set out in Children’s Foundation.

Facts

[3] The Club employed Harry Griffiths as Program Director from 1980 to 1992. Among others, the objectives of the Club were “to provide behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls”. As Program Director during this time, Griffiths was encouraged to cultivate positions of trust and respect with his young charges. His relationship with the appellants in this case resulted in one incident of sexual assault against the male appellant and several incidents of assault, culminating in sexual intercourse, with the female appellant. The disclosure of these events was first made in 1992, some ten years after they occurred. After being removed from office, pursuant to the instigation of a police investigation, Griffiths pled guilty to 14 counts of sexual assault involving the plaintiffs and other children. The appellants in this appeal sought civil damages from both Griffiths and the Club.

[4] Activities at the Club generally were carried on after school and on Saturdays. While most activities occurred on Club premises, various outings took place for camping, sporting, and other purposes. During the appellants’ time at the Club, Griffiths developed a friendship with them and paid particular attention to them. Every effort was made to present the Club as a trusted place to be and safe environment. The Club held Griffiths out to be a trusted confidant and role model.

[5] The appellants were among the children who frequented the Club. There they met and developed relationships with Griffiths. In the beginning, the relationships were entirely appropriate. In the end, it is alleged, they culminated in sexual assaults. In the case of the male appellant, then 10 or 11 years old, the allegation is that while at the Club, Griffiths invited him to his home and engaged him in a conversation of a sexual nature that devolved into an assault. In the case of the female appellant, it is alleged that after a period of working with her and encouraging her to develop a leadership role, Griffiths repeatedly assaulted her. In one of the incidents, on board a van drive to a Club-related sporting event, Griffiths allegedly placed her hand on his exposed penis.

Judgments Below

British Columbia Supreme Court, [1995] B.C.J. No. 2370 (QL)

[6] The trial judge, Wilkinson J., found that Griffiths had cultivated a “god-like” relationship with the children. Wilkinson J. also found that it was Griffiths’ position at the Club that allowed him to create the relationships of trust that predicated the attacks: “the cultivation of his victims by Griffiths took place on Club premises during Club working hours and that without that special relationship and the cultivation that took place, the actual acts would not have taken place” (para. 74). Comparing the case to the precedents discussed in our Children’s Foundation decision, Wilkinson J. found that the incidents fell closer to the dishonest employee cases. He also, however, resorted to policy-based considerations for the ascription of vicarious liability (at paras. 67-70):

The principles set out in the authorities on vicarious liability rely on the usual questions, “Was he engaged on his master’s business?” or “Was he acting as a stranger to his contract of employment?” Unless the business of the principal is to molest children, the answers to these and other questions may result in a denial of liability. Is that a result to be desired in the case of children who are sexually molested while in the care of adults?

Institutions engaged in the care of children are able to protect themselves with insurance and, more importantly, are in a better position than the children to prevent sexual misconduct.

If the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children. That motivation will not in my view be sufficiently supplied by the likelihood of liability in negligence. In many cases evidence will be lacking or have long since disappeared. The proof of appropriate standards is a difficult and uneven matter.

In my view liability ought to, and does, follow where an employee’s responsibility and employment involve the care and protection of children and the actions in question amount to doing wrongfully or criminally that which the employee was to do properly.

[7] Based on these conclusions, Wilkinson J. held the Club vicariously liable for Griffiths’ intentional torts.

British Columbia Court of Appeal (1997), 1997 CanLII 12485 (BC CA), 31 B.C.L.R. (3d) 1

[8] The same panel that decided the Children’s Foundation appeal presided over the proceedings below. Newbury J.A., applying the multi-faceted test she formulated in the Children’s Foundation decision, would have allowed the appeal in part. For her, a critical factor was that most of the assaults occurred off Club property. Only the one incident of assault (involving the van trip to the Club-related sporting event) could anchor vicarious liability, as the others, which occurred off site and in Griffiths’ own home, were too disconnected from the performance of Griffiths’ job functions. Finch J.A. concurred, noting his independent reasons in Children’s Foundation. Huddart J.A., however, applying the control-oriented test she developed in Children’s Foundation, would have allowed the appeal in toto. In her opinion, there was no exercise of authority under which Griffiths carried out his assaults. As such, there could be no basis for vicarious liability. Hollinrake J.A. (for himself and Donald J.A.) concurred with Huddart J.A., also noting his separate reasons in Children’s Foundation. Accordingly, the appeal was allowed and the finding of vicarious liability against the Club was reversed.

Issue

[9] The issue in this appeal is whether vicarious liability should attach to the Club for Griffiths’ intentional sexual torts.

Analysis

[10] The reasons in Children’s Foundation outline the preferable focus of inquiry for whether vicarious liability should attach for intentional torts such as the child abuse in this case. It might be noted at the outset that the learned trial judge proceeded much in the manner we suggest: he first analysed the relevant case law and then focussed the analysis through the lens of policy (albeit in a cursory manner).

[11] The trial judge concluded that the case law clearly supported holding the employer vicariously liable on this case. By contrast, Justice Binnie concludes that the cases point against holding the employer vicariously liable. Some courts have found vicarious liability in circumstances such as these. Others, some of which are emphasized by my colleague, have reasoned formalistically that no vicarious liability can lie when sexual abuse is antithetical to the employer’s aims (e.g. McDonald v. Mombourquette (1996), 1996 CanLII 8707 (NS CA), 152 N.S.R. (2d) 109 (C.A.)). As discussed in Children’s Foundation, the state of the case law on the issue is inconclusive and unsatisfactory. The cases therefore do not advance us. We must focus rather on the considerations of principle and policy discussed in the companion appeal.

[12] Applying the test expressed in the companion appeal of Children’s Foundation and mindful of the policy reasons for which vicarious liability exists, we must decide whether Griffiths’ intentional torts were sufficiently linked to his employment duties to justify the imposition of vicarious liability. As explained in Children’s Foundation, the key question is whether the Club’s operation of its business and use of Griffiths in his employment position created or materially enhanced the risk of the sexual assaults that took place. We must be mindful not to reduce this inquiry to mere “but-for” causation analysis. Clearly “but for” his employment, Griffiths would never have even been introduced to the complainants. The analysis is more nuanced. Did the Club’s operation throw into the community a very real risk that something like Griffiths’ molestations would occur, and hence, should it be held liable to compensate for the realized losses accruing from that risk?

[13] I conclude that this question must be answered in the affirmative, given the findings of fact of the trial judge. In Children’s Foundation, in addition to general principles, I listed a number of factors that can aid a court in considering this question. I turn now to those factors, almost all of which point in favour of liability.

[14] The first factor is the opportunity that the enterprise afforded Griffiths to perpetrate his attacks. An environment into which children are entrusted not just for adult supervision, but for adult mentoring, is one highly charged with potential for an abuse of that trust. Griffiths was authorized to interact with the children at the Club, and it seems logical to conclude that he was authorized to interact with the children outside the presence of other adults (there were only two permanent staff members at the Club, himself and the Executive Director). The evidence reveals no requirement that he be in the presence of other adults when working with the children. The trial judge explicitly emphasized opportunity in imposing vicarious liability, finding that it was only because Griffiths was put in this special position vis-à-vis these children that he was able to effect his illicit plan.

[15] A second factor, whether these acts could be said to further the employer’s aims, militates against finding liability. Clearly the Club was not in the business of molesting children. But this observation is almost tautological. This suggests that whether the wrongful act furthers the employer’s aims is more relevant when it points the other way, i.e., because we assume that intentional torts do not further employers’ ends, it is only remarkable when the intentional torts do, in fact, further those ends, making imposition of vicarious liability in those instances almost always appropriate. In the instant appeal, however, this factor is of little significance.

[16] Although the sexual tort itself was not in furtherance of the Club’s aims, the securing of a position of trust, power and intimacy in order to effectively mentor the children was squarely within the organization’s objectives. The trial judge found that according to its own constitution, the Club’s mandate was “to provide behaviour guidance and to promote the health, social, education, vocational and character development of boys and girls” (emphasis added). He characterized the enterprise as devoted to “the care, protection, and nurturing of children” (para. 69). The employer’s objective of a trusting and intimate relationship between its employees and the children flowed from this objective. The evidence and findings establish that it was crucial for Griffiths to secure a position of trust in order to cultivate his victim pool. Thus while the intentional tort of sexual assault itself was unauthorized, its necessary predicate cultivation of a position of trust and intimacy was. It is this authorization of the trusting relationship that favours the attribution of vicarious liability under the second factor. I thus draw a distinction between a situation where, for example, an intimate situation of trust develops serendipitously, as a matter of chance, and one where the relationship develops as a necessity of the employer’s objectives. (I would contrast a situation where a school student quite by chance befriends, and subsequently trusts, a school janitor whose work does not require trust-like contact with students, with one where a school student develops a situation of trust with the guidance counsellor.) The Club, by making one of its goals “to provide behaviour guidance”, and thus authorizing the development of a trusting and intimate relationship, introduced the risks associated with such relationships between adults and children. This strengthens the argument that it should be held financially responsible for those risks when they materialized.

[17] This brings us to the third factor discussed in Children’s Foundation: whether the wrongful act was related to intimacy inherent in the employer’s enterprise and the opportunity for abuse it afforded. On this point, I part company with my colleague Binnie J. The care, protection and nurturing of children to which the trial judge alluded on the facts of how the Club and Mr. Griffiths operated clearly encouraged relationships of intimacy. The Club went further, in its nurturing activities, than encouraging rapport with a role model; it positively encouraged an intimate relationship to develop between Griffiths and his young charges. The risk associated with this position of trust was exacerbated by the troubled and vulnerable nature of many of the Club’s clients. The Boys’ and Girls’ Club was not a garden-variety sports league. It rather took as its function the goal of guidance and moral direction to youths, many of whom had disadvantaged or even troubled backgrounds, like the appellants in this appeal. For this, the Club cannot be criticized. Indeed, it may be lauded. But the fact remains that having assumed this special mentoring responsibility, the Club may also be properly viewed as having assumed responsibility for the heightened risks it introduced. The rationales of risk allocation and deterrence discussed in Children’s Foundation are engaged, and liability may more readily be imposed.

[18] A fourth consideration is the extent of power conferred on the employee in relation to the victim. Courts must be conscious of both expressly and implicitly conferred power. In this case, I need go no further than the trial judge’s finding that Griffiths exercised a “god-like” authority over his victims to conclude that yet another factor points toward liability. This negates the suggestion that “[t]he Club did not confer any meaningful ‘power’ over the appellants” (Binnie J., at para. 83). While the child’s subjective assessment of the situation is not alone conclusive of the nature of the power the employee exercised, when analysing the degree of power a job carries, it is certainly appropriate to consider what a reasonable child would think of the employee’s position in assessing whether the employer should be held vicariously liable for the employee’s tort. While Griffiths was hardly a police officer or foster parent, power must be understood in context. Here, as a role model at a club that dealt with vulnerable children, there is little to negate the trial judge’s conclusion that Griffiths’ position over the children was one of power. By clothing the employee with that power, the employer introduced a risk, small but real, of its abuse. This, in turn, supports the view that the employer may fairly be held responsible for the misuses of such power.

[19] The fifth factor is the vulnerability of potential victims to the wrongful exercise of employees’ power. When victims are vulnerable, a heightened risk exists that a predatory employee will exploit the chance to abuse positions of trust or power. It goes without saying that children are vulnerable as potential victims of intentional torts such as sexual abuse. These children, troubled adolescents, were more vulnerable than most.

[20] The analysis does not end with the non-exhaustive list of factors in Children’s Foundation provided to give guidance to lower courts. The ultimate focus must be on the connection between the employment and the tort, and whether the former materially and significantly enhanced or exacerbated the risk of the latter. As suggested in Children’s Foundation, negativing factors may come into play in making this determination. This case provides such an example. Other than the van incident, Griffiths’ assaults all took place off site (at his home) and after hours. This fact weighs against holding the Club liable for the Griffiths’ torts, buttressing the submission that Griffiths’ conduct was perverse personal frolic, wholly unrelated to the scope of his employment.

[21] The force of that suggestion, however, is largely dissipated by two countervailing considerations. First, spatial and temporal factors such as when and where the torts occurred must be considered together with all the other relevant factors. They are not per se determinative. The issue of whether a sufficient connection to posit vicarious liability exists between the wrongful act and the employment involves much more than when and where the wrongful act occurred. This leads to the second countervailing consideration. To treat the torts simply as discrete incidents that occurred at Griffiths’ house ignores the careful plan of entrapment that Griffiths laid. It was his fostering of trust at the Club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts. Again, a comparison might be useful. If one cashier at a supermarket invites another over to dinner and assaults him, the tort cannot be said to arise out of the employment. This is so even though the employment provided the opportunity, through on-the-job socialization, to convince the co-worker to accept the invitation. The incident would remain an example of otherwise unremarkable “mere opportunity”. Without more, it provides no basis to draw the tort back to the supermarket. The current case, however, is entirely different. It is not the mere coincidence of location and interaction that led Griffiths to prey upon his victims ^__ it is rather that he worked at a job where he was put in a special position of trust and power over particularly vulnerable people and used that position to carry out an abuse of the power with which he was conferred to carry out his duties. It is this considerably stronger connection that justifies the Club being held liable to bear the costs of the losses inflicted by Griffiths.

[22] Almost all the relevant factors suggest that Griffiths’ torts were, in fact, linked to his employment. I would therefore hold the Club vicariously liable for his conduct. The policy rationales underpinning vicarious liability fair compensation and deterrence support this conclusion. The Club introduced Griffiths to the community’s children and clothed him with special responsibilities and powers over those children who were most vulnerable. It created and sustained the risk that materialized. Compensation for the harm that followed may fairly be viewed as a cost of the Club’s operations. The rationales of risk distribution and deterrence support vicarious liability in these circumstances.

[23] I differ from the Court of Appeal, not on the factors they considered, but on how those factors relate to the ultimate issue of the relationship between the employee’s wrongful act and his employment. The ultimate issue is not the time and place of the wrongs (emphasized by Newbury J.A.), nor whether Griffiths could have perpetrated his wrongs as a friendly neighbour (emphasized by Huddart J.A. ). These factors, while relevant, must be considered with the other factors to which I have alluded to determine whether the employment materially and significantly enhanced the risk of the abuse that occurred. While the connection between employment and wrong in this case may have been less compelling than the overwhelmingly close connection established in the Children’s Foundation appeal, the evidence and the findings of the trial judge suffice to establish that the employment materially and significantly enhanced the risk of the sexual assaults that occurred.

[24] I add three brief comments on related points. First that I do not see the issue as a contest between fairness and liability. The goal of compensation is not simply a deep pockets rule. Fair compensation involves internalizing the cost of a risk on the appropriate party, judged not by terms of ability to pay but by introduction of the risk that led to the tort. To cast the issue in terms of “pro-liability” versus “fairness” is to posit a false dichotomy between vicarious liability and what is fair. Our ultimate goal is a rule of vicarious liability that is fair to the plaintiff, the defendant, and society.

[25] Second, for the reasons set out in Children’s Foundation, I cannot agree that the goals of compensation and deterrence are not served in this case, notwithstanding the non-profit character of the Club. I note that the old common law charitable immunity rule has long been abolished. The animation of such a rule was that many charities, performing needed and valuable services to the public, might have had to cease operations had they been inundated with tort claims (either fault-based or non-fault-based claims). The rule having been rejected, the logic on which it was based that charities should be exempted from tort claims lest they be forced to cease good works should also be rejected, absent legislative countermand.

[26] Finally, I would reject any suggestion that an employee’s job must bear a sufficient similarity to parenting to invoke vicarious liability in child abuse cases. Such an analysis seems to me to focus inordinately on the power exercised by the employee to the exclusion of other factors in the test propounded in Children’s Foundation and is to be eschewed.

[27] In the end, however one may parse this tort, it arose from the risks created by the special situation of trust and respect fostered by Griffiths as part of the Club’s enterprise. The Club is an institution that has the explicit agenda of taking in troubled youths like the appellants and providing behavioural guidance through activities such as sport. That enterprise carries risks. Those risks materialized here, with grave physical and emotional consequences. The Club’s goals are laudable, but they cannot immunize it from responsibility for the losses generated by its employee’s conduct.

Conclusion

[28] The appeal should be allowed with costs and the judgment of the trial court restored.

The judgment of Cory, Iacobucci, Major and Binnie JJ. was delivered by

//Binnie J.//

[29] Binnie J. ^__ The attribution of vicarious liability is not so much a “deduction from legalistic premises” as it is a matter of policy, as the Court observes in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, released concurrently (hereinafter “Children’s Foundation”), at para. 26. Nevertheless, as the Court adds, “[a] focus on policy is not to diminish the importance of legal principle” (para. 27). In Children’s Foundation, the employer set out to create, from the highest of motives, a quasi-parental relationship between its employees and the children in their care, with all of the authority and intimacy of such relationships, and thereby “materially increased the risk of the harm that ensued” (para. 43). The physical touching associated with the quasi-parental relationship precipitated into sexual abuse. In my opinion, however, the present case falls on the other side of the line, and does not warrant the imposition of vicarious liability. Much as the Court may wish to take advantage of the deeper pockets of the respondent to see the appellants compensated, we have no jurisdiction ex aequo et bono to practise distributive justice. On the facts of this case, legal principle and precedents favour the respondent.

[30] If the Boys’ and Girls’ Club of Vernon were vicariously responsible for damages arising out of the criminal conduct of its employee Griffiths, which so far as this appeal is concerned must be taken to have been unknown, unauthorized and unforeseen, then it would be difficult to imagine many enterprises whose mandate includes mentoring or role models for children being able to escape vicarious liability to provide financial compensation for criminal sexual abuse by an employee. While on the positive side such an all-embracing attribution of no-fault liability would assist victims in the position of the appellants, it would also change the legal ground rules under which recreational organizations were thought to be governed under the existing case law. These organizations could be expected to respond rationally, if reluctantly, to a new harbinger of financial liability. They might vote with their feet. It is therefore important that here, as elsewhere, the test for vicarious liability adopted by the Court in Children’s Foundation be applied with serious rigour.

[31] McLachlin J. in Children’s Foundation sets out the two-step process for determining when an unauthorized act is “so connected” to the employer’s enterprise that liability should be imposed (at para. 15):

First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.

In my view, the case law, reflecting policy judgments by various courts over many years and across many different jurisdictions, “clearly” suggests that the imposition of no-fault liability in this case would overshoot the existing judicial consensus about appropriate limits of an employer’s no-fault liability. This same conclusion is reached under the second step of the analysis in which the “broader policy rationales” are confronted directly. I therefore think the British Columbia Court of Appeal correctly denied vicarious no-fault liability in this case and I would dismiss the appeal on that point, without prejudice to the appellants’ right to continue proceedings in the Supreme Court of British Columbia, if so advised, on the issues of the Club’s potential fault-based liability.

Facts

[32] The enterprise operated by the Vernon Boys’ and Girls’ Club is typical of a vast number of non-profit organizations operating in communities from coast to coast. The founders wisely had the Club incorporated in 1976 under the Societies Act, R.S.B.C. 1960, c. 362. As a society, the Club cannot carry on “any trade, industry, or business” (s. 3(1)). It derives most of its revenue from federal and provincial grants, membership and program fees, and fundraisers. Its constitution includes as objectives:

to provide behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls. . . .

At the time of the assaults, the Club had a board of volunteer Directors. There were two salaried employees. Griffiths, as Program Director, reported to the only other paid employee, the Executive Director. Griffiths supervised volunteer staff on a daily basis. Unlike the employer in the Children’s Foundation, the Vernon Boys’ and Girls’ Club provided a recreational, not a residential, facility for children. It did not purport to offer parenting of any description to its members. Griffiths’ function, so far as the Club was concerned, was to organize recreational activities and the occasional outing, as will be discussed below in greater detail, and nothing more.

[33] In 1982 Jody Jacobi was 13 years old, and her brother Randy was 11. They lived at home. The Club was within walking distance. Jody and Randy on occasion participated in Club activities after school or on Saturdays. Amongst these activities, Randy played floor hockey and Jody did gymnastics. The trial judge found that “[t]he Club was a fun place to go and was safe” ([1995] B.C.J. No. 2370 (QL), at para. 7).

[34] For both Jody and Randy, their home life was not easy. Their mother had moved them to Vernon, British Columbia from Calgary in 1979 after splitting up with their father, her second husband. Her third marriage lasted a few months in 1980 and came to an end in January 1981. She married again in 1982, but separated in 1985. The trial judge found that there was “a lot of turmoil at home” (para. 26) in the late 1970s, and her marriage in 1980 was “a disaster”, including “inter-family tension” and “serious emotional and physical abuse, certainly in the presence of the two youngest children [the appellants], if not directed at them” (para. 27).

[35] The Vernon Boys’ and Girls’ Club happened to offer something of a sanctuary for these children, particularly Jody, who completed a course of leadership training. Jody testified at trial that she felt safe at the Club and her only friends were other members of the Club. After the assaults in question she continued her association with the Club, and years later participated in its activities as a full-time salaried worker. Randy also felt safe at the Club and all his friends and activities centred around the Club. The trial judge found (at para. 8):

All this was precisely the sort of thing the Club was supposed to foster and was particularly beneficial to children such as [Randy] whose family background was not especially happy.

[36] The sexual abuse occurred on separate occasions in approximately 1982. Randy and Jody were each assaulted away from the Club and outside working hours (except for one incident of sexual touching of Jody in the Club’s van for which Newbury J.A. in the British Columbia Court of Appeal would have found the Club vicariously responsible). Griffiths’ job was to coordinate the after-school activities. This included supervising and some participation in the members’ activities. He was expected to develop a “rapport” with the members. The trial judge found that both Jody and Randy suffered long-term trauma from the incidents. Neither even felt able to disclose them until about 10 years later. The trial judge found that “[e]ssentially there was a single incident involving” Randy and “one incident of sexual intercourse involving” Jody “following several lesser incidents” (para. 1). Griffiths pleaded guilty to these and other offences and was jailed for six years.

[37] This background is important because it is clear that by reason of their age and unsettled home life these children were vulnerable to a sexual predator like Griffiths. If the Club was negligent in hiring Griffiths, or supervising him, or in using Griffiths to discharge its own duty of care to the children, direct liability would result. In this appeal, however, we are asked to proceed on the basis that there is no direct liability. We are concerned only with the possibility of the Club’s vicarious “no-fault” liability for Griffiths’ crimes. The trial judge considered that it was necessary to impose vicarious liability as a matter of public policy “[i]f the scourge of sexual predation is to be stamped out, or at least controlled” (para. 69). I agree that we are dealing with public policy as developed in the jurisprudence but, with respect, it seems to me there is a whole complex of such public policy considerations that have to be weighed if justice is to be done to all concerned. More importantly, at the end of the day, judicial policy must yield to legal principle.

The “Opportunity” for Abuse Created by the Employer

[38] The trial judge found that Griffiths took the opportunity to develop friendly relationships with the victims through Club activities. With regard to Randy, the trial judge stated at para. 8:

During the course of his attendance, Harry [Griffiths] paid more and more attention to him, appeared to respect him and encouraged him to become involved in more activities. Harry made him feel more important. Randy was taken on a floor hockey trip to Edmonton in the Club van. He felt safe at the Club and his friends and activities became centred at the Club and Harry made him feel important and respected.

In respect of Jody, the trial judge stated at para. 11:

[Jody] found Harry Griffiths to be very friendly and supportive. He encouraged her and appeared to respect her greatly. He encouraged her to take leadership roles in various activities and she became an instructor and eventually a full-time worker in the Club. She thought Harry was wonderful and believed that he liked and respected her.

[39] The testimony of Griffiths in portions of his discovery transcript that were read in at trial demonstrate that Griffiths was not placed in a special position of trust with respect to the children’s “care, protection and nurturing”. While any friendship between an adult and a child has an aspect of trust, the trial judge I think went beyond the reality of this Club when he accepted Jody’s description at trial of Griffiths as a “god-like” authority. Even if true, it is fair to say that this view of Griffiths did not reflect any state of affairs willed into existence by the Club or that was foreseeably incidental to its enterprise.

[40] When asked how he selected these victims from all of the children that attended at the Club, Griffiths responded that there was no specific reason. The children who later became victims were particularly outgoing and friendly and were the ones who had sought Griffiths out to participate in the games and activities. Over a period of time a friendly relationship was built up between Griffiths and the two children. The course of criminal conduct grew step by step from that friendship, and not from any alleged position of trust. This is evident from the transcript: when asked whether there were any particular words he used to get the children to participate in sex acts, Griffiths responded:

. . . it was the ^__ I guess the sexual talk and innuendo, joking, and they seemed to partake in that also with the jokes back and comments. So you know that started and then it continued on into where they spent more and more time and they were coming over at my place and then the sexual acts started. [Emphasis added.]

[41] In my view, an accurate summary of the evidence relating to the relationship between Griffiths and the Club as well as the authority (or lack thereof) Griffiths had over the children is found in the decision by Huddart J.A. of the British Columbia Court of Appeal ((1997), 1997 CanLII 12485 (BC CA), 31 B.C.L.R. (3d) 1, at pp. 7-8):

Mr. Griffiths was the Program Director of the respondent Club, one of two full-time employees. His job was to encourage children to participate in its activities and to supervise those activities, and in so doing to further the Club’s objectives, among which is “to promote behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls.” In that capacity he was encouraged to form friendships with the boys and girls. That was the most the Club could ask him to do. It had no power or authority over the children. It was not their parent. Nor did it stand in loco parentis. The boys and girls went home to their parents after every activity. [Emphasis added.]

This description is to be contrasted with the facts in Children’s Foundation where, as explained by McLachlin J. at para. 58, “[t]he opportunity for intimate private control and the parental relationship and power required by the terms of employment created the special environment that nurtured and brought to fruition Curry’s sexual abuse. . . . Indeed, it is difficult to imagine a job with a greater risk for child sexual abuse” (emphasis added). While any situation which places adults in contact with children creates some possibility of abuse, an employer who encourages an employee to create no more than a positive rapport with children is not at the same end of the spectrum of risk as the employer in Children’s Foundation.

Applying the Test from Children’s Foundation

[42] In Children’s Foundation, this Court endorses the “enterprise risk” approach to vicarious liability. Thus at para. 31 McLachlin J. explains, “[t]he employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss.” The touchstone of “fairness” in this context depends not on “foreseeability of risks from specific conduct, but . . . foreseeability of the broad risks incident to a whole enterprise” (para. 39). Finally, “there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks” (para. 42) (first emphasis added; second emphasis in original).

[43] It is important to be precise about the characteristics of the particular enterprise at issue in this appeal. The Club provided the employee with an opportunity to meet children, as does any organization that deals with children. The Club authorized Griffiths to develop a rapport with these children. This again is inevitable in any such enterprise. The Club offered recreation in a public setting (as opposed to the privacy of Griffiths’ home) in group activities with other persons including children and volunteers whose continuing presence would have been fatal to Griffiths’ personal agenda. Griffiths had no job-created authority to insinuate himself into the intimate lives of these children. Unlike Children’s Foundation the enterprise here had only two employees and its emphasis was on developing (horizontal) relationships among the members, not (vertical) relationships to persons in authority.

Stage 1: Previous Cases

[44] As McLachlin J. points out, different torts may raise different issues in the analysis of potential vicarious liability. It is easier to rationalize the imposition of no-fault vicarious liability for an employee’s negligent performance of the employer’s contract, for example, than to impose on the employer vicarious liability for criminal conduct, such as a sexual assault, committed by the employee for personal gratification. The case law included in the stage 1 analysis ought therefore to raise as closely as possible the same issues as are raised in the case under appeal. Canadian courts have in fact examined a variety of circumstances in which it has been sought to make employers liable for sexual assaults committed by employees. It is fair to say that these cases demonstrate a strong reluctance to impose no-fault liability for such deeply personal and abhorrent behaviour on the part of an employee. The trial judge in this case, navigating without the benefit of McLachlin J.’s decision in Children’s Foundation, felt it unnecessary to make a comprehensive study of the case law. Apart from the trial decision in Children’s Foundation, he cited only Boothman v. Canada, 1993 CanLII 2949 (FC), [1993] 3 F.C. 381 (T.D.), a case of workplace harassment by an immediate supervisor, and The Queen v. Levy Brothers Co., 1961 CanLII 58 (SCC), [1961] S.C.R. 189, a case of mail theft by employees of Canada Post. Neither Boothman nor Levy Brothers sheds much light on the specific problems raised by this appeal, and Children’s Foundation is a very different case on the facts.

(a) The “Opportunity” Cases

[45] As McLachlin J. notes at para. 40 of Children’s Foundation, “any employment can be seen to provide the causation of an employee’s tort. Therefore, ‘mere opportunity’ to commit a tort, in the common ‘but-for’ understanding of that phrase, does not suffice” to impose no-fault liability (emphasis in original). The “janitor” cases, for example, illustrate that the creation of opportunity without job-created power over the victim or other link between the employment and the tort will seldom constitute the “strong connection” required to attract vicarious liability. In E.D.G. v. Hammer, 1998 CanLII 15064 (BC SC), [1998] B.C.J. No. 992 (QL) (S.C.), Vickers J. found there was no vicarious liability on a school board for the sexual assault committed by a janitor since “[a]ll that can be said to support a finding of vicarious liability is that Mr. Hammer was employed as a janitor at the school and his duties provided him with the opportunity to commit the wrongful acts” (para. 52). With regard to the policy considerations in such cases, Vickers J. expressed concern about courts encroaching on matters better left to the legislature (at para. 54):

The choice is whether to impose the burden of these damages on an innocent School Board as opposed to leaving them lie with the innocent victim. It is not a proper policy choice to impose on the court. If school boards are to become insurers for all of the actions of their employees then that is a policy choice that must be made by Members of the Legislative Assembly.

[46] The Ontario Court of Appeal declined to impose vicarious liability in Q. v. Minto Management Ltd. (1985), 1985 CanLII 2103 (ON SC), 15 D.L.R. (4th) 581 (Ont. H.C.), aff’d (1986), 1986 CanLII 2518 (ON CA), 34 D.L.R. (4th) 767 (Ont. C.A.). In that case a tenant was raped in her apartment by the landlord’s employee. The employee had access through his employment to the master keys for the apartment building. Gray J. rejected the claim of vicarious liability against the landlord for the sexual assaults because he viewed the act of the employee as an independent act that was insufficiently related to the scope of employment. (Gray J. did, however, find that the landlord was negligent, and this finding afforded a basis of direct liability that was upheld by the Ontario Court of Appeal.)

[47] Similarly, in Goodwin c. Commission scolaire Laurenval, [1991] R.R.A. 673, 8 C.C.L.T. (2d) 267 (Que. S.C.), Forget J. found that a janitor of a school in that case had been told that if he let students into the locked school after hours, he was to follow them to ensure that they did not wander in the school without supervision. A young girl who had asked the janitor to use the washroom facilities at a time when the school was closed was subjected to an episode of sexual touching by the janitor. Forget J. found that the school board was not liable because even though the Board had conferred some child-related responsibilities (i.e., supervision to and from the washroom), the assault was insufficiently connected to the janitor’s duty to supervise (at p. 679 R.R.A.):

[translation] Applying these criteria, it becomes clear that Mr. Cheng was not acting in the performance of his duties when he engaged in the alleged conduct. What Mr. Cheng said and what he did were not in any way connected with a supervisory activity. The situation would be entirely different if, for example, the janitor had struck the children because they refused to leave the school or obey his instructions; but that is not the case.

[48] A further level of complexity is added in cases where the enterprise provides not only the “bare opportunity”, but adds a job-created excuse for intimate access to the individual who becomes the victim. In these cases the enterprise adds to a “mere” opportunity a mode of operation that facilitates access to the victim to commit the very type of tort that happened. This, however, has not been thought by Canadian courts a sufficiently “strong connection” to impose no-fault liability on the employer.

[49] In B. (J.-P.) v. Jacob (1998), 1998 CanLII 12231 (NB CA), 166 D.L.R. (4th) 125, the New Brunswick Court of Appeal found that the hospital corporation was not vicariously liable when one of the male nurses in its employ sexually assaulted a sleeping patient. The assault took place during working hours. The court found that the male nurse had, through his employment, the opportunity to enter the room of the sleeping patient where he committed the assault, but these facts were not sufficient to find the employer vicariously liable.

[50] In Barrett v. The Ship “Arcadia” (1977), 1977 CanLII 1728 (BC SC), 76 D.L.R. (3d) 535 (B.C.S.C.), an employee engaged as an officer’s steward by the defendant navigation shipping company dressed in a steward’s uniform and entered the stateroom of a passenger. The passenger had no reason to believe that he was not acting within the capacity of a passenger’s steward. Upon entering the room, the employee began sexually assaulting the passenger, who then ran out of the cabin to call for help. The court found that the defendant steamship company could not be held vicariously liable since the assault was “an act clearly separate and apart from, and unconnected with his employment as an officer’s steward” (p. 537).

[51] While these cases did not have the benefit of the Children’s Foundation framework of analysis, they do illustrate the historical reluctance of judges in this country to fix employers with no-fault liability on the basis merely of job-created opportunity even where accompanied (as in the present appeal) by privileged access to the victim. In such cases it may be acknowledged that proximity and regular contact may afford a pool of potential victims. Nevertheless, while each of the enterprises in the above cases foreseeably created risks that were not otherwise present, it was concluded (to put it in terms of the Children’s Foundation analysis) that there was an insufficiently strong connection between the type of risk created and the actual assault that occurred to warrant imposition of no-fault liability.

[52] The U.S. cases are generally to the same effect. In Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984), the Court of Appeals found that the District of Columbia public schools could not be held vicariously liable for a sexual assault on a blind, deaf and mute student by the coordinator of a program for blind and deaf students. “We do not believe that a sexual assault may be deemed a direct outgrowth of a school official’s authorization to take a student by the hand or arm in guiding her past obstacles in the building” (p. 562). The employee’s conduct was “utterly without relation to the service which he was employed to render” (p. 564). (I add, parenthetically, that the authority in the present case to “touch” a child by steadying his or her dismount from a piece of gym equipment or as part of a ball or hockey game, is no more related to a sexual assault than was the authority to take the blind child by the hand to guide her around obstacles in the building in the Boykin case.) In Lourim v. Swensen, 936 P.2d 1011 (Or. Ct. App. 1997), at p. 1015, the Oregon Court of Appeals reviewed many of the more recent cases of sexual assaults by employees and refused to find, as a matter of law, that the Boy Scouts of America could be held liable for sexual assaults committed by a scout leader. See also Ciarochi v. Boy Scouts of America, Inc., Alaska Sup. Ct., Ketchikan Registry IKE-89-42 CI, August 6, 1990, where the trial court refused to impose vicarious liability on the Boy Scouts of America for the sexual assaults committed by a scoutmaster.

(b) The “Employer’s Aims” Cases

[53] It is difficult to think of a situation where sexual assault by an employee would advance the aims of the employer’s enterprise. For this reason, my colleague McLachlin J. considers the employer’s aims to be “of little significance” in the present appeal (at para. 15). It is, of course, true that generally it does not matter if an employee has not been acting in furtherance of the employer’s aims so long as there is a strong connection between the job and the tort, for example, where the employee is acting within the scope of his authority: Lloyd v. Grace, Smith & Co., [1912] A.C. 716 (H.L.); Lockhart v. Canadian Pacific Railway Co., 1941 CanLII 5 (SCC), [1941] S.C.R. 278; W. W. Sales Ltd. v. City of Edmonton, 1942 CanLII 27 (SCC), [1942] S.C.R. 467. However, if, as my colleague argues at para. 16, the respondent’s vicarious liability in this appeal is to be based on a type of “role modelling” inferred from the Club’s mission statement, it is only fair that the context of its aims and objectives also be taken into account. An employer’s aims do constitute part of the architecture of an enterprise, and provide some guidance as to what risks the employer reasonably believed it was introducing into the community, and thus the sort of broad risks it may reasonably have contemplated, and for which it may reasonably be held responsible. Moreover, if one is to approach the case law in a spirit of enquiry, the employers’ aims have traditionally been given prominence in the decided cases.

[54] Much reliance was placed by the respondent on McDonald v. Mombourquette (1996), 1996 CanLII 8707 (NS CA), 152 N.S.R. (2d) 109 (C.A.) (leave to appeal refused, [1997] 2 S.C.R. xi), which involved a claim against the Roman Catholic & Episcopal Church Corporation for sexual assaults committed by one of its priests against the children of parishioners. The trial judge imposed vicarious liability on the Church primarily because he considered that the priest had been placed by the employer in a position of trust and authority. The Nova Scotia Court of Appeal reversed, finding that the test “is not simply that an employee is placed in a position of trust and authority that provides the opportunity to do wrong. Applying that test employers would be liable for all wrongful acts of their employees” (pp. 116-17). The Court of Appeal ruled that the fact the Church had employed Mombourquette as a clergyman and authorized him to act in a privileged position was not sufficient to impose liability, particularly “where he acts criminally and totally contrary to the religious tenets which he has sworn to uphold” (p. 123). The Court of Appeal cited two U.S. cases where liability against religious institutions was denied on similar grounds for sexual assaults by clergymen (at p. 122): Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988), and Tichenor v. Roman Catholic Church of the Archdiocese of New Orleans, 32 F.3d 953 (5th Cir. 1994). In Tichenor the Fifth Circuit court said: “It would be hard to imagine a more difficult argument than that [the priest’s] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of St. Rita’s, his employer” (p. 960). This is not to say that churches and other high-minded organizations will escape liability simply because of the nature of their teachings, but nevertheless, as stated, the antithetical nature of the crime has generally been thought a relevant factor to be considered in assessing the risks associated with the enterprise which the employer set out to introduce into the community. In Milla v. Tamayo, 232 Cal. Rptr. 685 (Ct. App. 1986), the court asserted, at p. 690: “It would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church.” As stated by McLachlin J. in Children’s Foundation at para. 39, quoting Professor Fleming, The Law of Torts (9th ed. 1998), the Court is properly concerned with “the measure of risks that may fairly be regarded as typical of the enterprise in question” (emphasis added).

[55] Courts in many of the United States apply variants of the Salmond test for vicarious liability (much discussed in Children’s Foundation, particularly in the British Columbia Court of Appeal) and in that context have placed considerable emphasis on the antithesis between the employer’s aims and the employee’s personal agenda: see Salmond and Heuston on the Law of Torts (21st ed. 1996), at p. 443, which provides as follows:

A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. . . . [A master] is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them. [Emphasis added.]

The Salmond test was endorsed by the Privy Council in Canadian Pacific Railway Co. v. Lockhart, 1942 CanLII 366 (UK JCPC), [1942] A.C. 591, and by this Court in W. W. Sales Ltd., supra. The Salmond approach is reflected in much of the U.S. jurisprudence, and this common legal foundation makes the U.S. decisions particularly interesting.

[56] In Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241 (Ga. Ct. App. 1987), it was held that the organization could not be vicariously liable for sexual assaults committed by an accused volunteer: “While Hendricks may have been advancing Big Brother’s interest by spending time with Sheridan, he clearly abandoned Big Brother’s interest and pursued only his own when he sodomized the child” (p. 243). For other illustrations of the U.S. “independent purpose” doctrine, see e.g. Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir. 1978), where the plaintiff, who was the last person to leave the building she worked in at night, was assaulted by the security guard on duty. On appeal, the justices held: “The assault was to effect [the security guard’s] independent purpose, and it was not within the scope of his employment. The mere fact that the tort was committed at a time that [the guard] should have been about Guardsmark’s business and that it occurred at the place where [the guard] was directed to perform Guardsmark’s business does not alter these conclusions” (p. 1279). See also: Webb by Harris v. Jewel Companies, Inc., 485 N.E.2d 409 (Ill. App. Ct. 1985) (vicarious liability denied where a security guard who had the power both to detain and to search suspected shoplifters detained and assaulted victim who was taken to an enclosed office for the purpose of searching her); Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (Ga. Ct. App. 1992), (vicarious liability denied where a recreational supervisor at a boarding school was alleged to have engaged in a “consensual” sexual relationship with a 13-year-old student); and Noto v. St. Vincent’s Hospital and Medical Center of New York, 537 N.Y.S.2d 446 (Sup. Ct. 1988) (hospital not vicariously liable for employing a psychiatrist who engaged in an “affair” with a patient who sought treatment for depression and drug and alcohol dependency).

[57] Regard should be had in this connection to the decision of the English Court of Appeal in S.T. v. North Yorkshire County Council, [1999] I.R.L.R. 98 (whose reasoning is criticized in Children’s Foundation, at para. 23, for undue emphasis on semantics). In that case, on a school trip to Spain, S.T., who suffered from epilepsy and a mental handicap, shared a room with the deputy headmaster employed by the Council. S.T. required nocturnal supervision in case seizures occurred. During the night, the deputy headmaster sexually assaulted S.T. The trial judge, applying the second branch of the Salmond test, concluded that “the acts of the deputy head were so connected with his authorised responsibilities that they can be regarded as modes, albeit improper modes, of performing his authorised duties” (para. 5). The Court of Appeal reversed. None of the members of the court were prepared to impose vicarious liability on the Council. Butler-Sloss L.J. found the deputy headmaster’s conduct “a negation of the duty of the council to look after children for whom it was responsible” (para. 18). As McLachlin J. points out in Children’s Foundation, the reasoning in S.T. presents difficulties.

(c) Cases of Risks Inherent and Foreseeable in the Nature of the Employer’s

Enterprise

[58] It may be thought that in many of the cases mentioned above, the employer’s enterprise had created a “risk” that went beyond the mere creation of an initial opportunity for the assailant to encounter his victims, yet vicarious liability was denied. In terms of the Children’s Foundation analysis, the courts were not persuaded that the connection between the job-creating enterprise and the sexual assault was sufficiently close or “strong” to impose no-fault liability on the employer. The result has been otherwise, and the employer held vicariously liable, in cases where the “strong connection” was enhanced by a combination of job-created power and job-created intimacy. Power and intimacy, of course, are hallmarks of a parenting relationship. It was the job-created parent-like relationship that attracted vicarious liability in Children’s Foundation. It is the same potent combination that explains numerous other decisions in this country and in the United States. In A. (C.) v. Critchley (1998), 1998 CanLII 9129 (BC CA), 166 D.L.R. (4th) 475, the British Columbia Court of Appeal upheld a trial decision finding the Crown liable vicariously as a result of sexual assaults committed by Critchley, the operator of a wilderness group home, on male youths at the facility. Some question arose as to whether Critchley could be considered an employee or an independent contractor, but the court found that it is the true nature of the relationship, not the traditional classification, that is determinative. The court found the Crown vicariously liable because the Crown conferred “virtual 24-hour-a-day parental authority over the residents” (p. 506) and viewed Critchley as having essentially a “surrogate parent” relationship with the victims (p. 506).

[59] In D.C.B. v. Boulianne, [1996] B.C.J. No. 2183 (QL) (S.C.), Clancy J. held that the Nanaimo Indian Band was not vicariously liable for a sexual assault by Boulianne, a drug counsellor in its employ, on a woman he was counselling. The case shows a similar pattern of predatory ingratiation to the present one. Clancy J. concluded, at para. 56:

Mr. Boulianne could be said to have cultivated the affections of Ms. B in the same time frame within which he provided counselling services. That seems to me to be a tenuous basis on which to found liability. What is lacking is a connection between the counselling and the growing affection between the parties. The evidence does not support the suggestion that there was a deliberate cultivation of Ms. B. It seems more likely that in the course of meeting her Mr. Boulianne became attracted and acted upon that attraction. The same result could have occurred in any relationship which put the parties in each other's company.

[60] In B. (K.L.) v. British Columbia (1998), 51 B.C.L.R. (3d) 1 (S.C.), Dillon J. found that the Crown was vicariously liable for the damage caused by the wrongful behaviour of foster parents towards children in their care. Although the foster parents were not alleged to have sexually assaulted the young children, it was contended that the foster parents had abused and neglected the children. Dillon J. found that, in addition to direct liability for breach of fiduciary duty and negligence, the Crown was vicariously liable for the actions of the foster parents within the Crown’s control because of the job-related conferral of parental authority (see p. 41).

[61] In B. (W.R.) v. Plint (1998), 1998 CanLII 13299 (BC SC), 161 D.L.R. (4th) 538 (B.C.S.C.), the plaintiffs claimed against the United Church of Canada and the federal government as a result of sexual assaults committed against them at the Alberni Indian Residential School by a dormitory supervisor. Brenner J. found that Plint, as dormitory supervisor, had the authority of a parent conferred upon him as he “in all respects functioned as their parent” (p. 545). Both the Church and the federal government were held to be vicariously liable.

[62] In K. (W.) v. Pornbacher (1997), 1997 CanLII 12565 (BC SC), 32 B.C.L.R. (3d) 360 (S.C.), Quijano J. held the Catholic Church to be both negligent and vicariously liable for sexual assaults committed by a priest, based on his view that the appropriate test was “whether Paul Pornbacher was to be involved in the care or nurturing of children in the course of his employment” (p. 380).

[63] The U.S. cases exhibit a similar judicial consensus that the combination of power plus intimacy creates a strong connection between the enterprise and the sexual assault. In Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990), a counsellor at the Center engaged in sexual activity with the plaintiff, which arose out of the counsellor’s handling of the “transference phenomenon”, described as a “parent-dependent relationship” (p. 345). The sexual activity was characterized as incidental to the therapy, and the employer was held vicariously liable. This result is consistent with the Children’s Foundation analysis that employers who place employees in a parental-type relationship will be more likely to be held vicariously liable for the employee’s sexual assaults.

[64] I would not want to be taken as suggesting that creation of a parent-type relationship constitutes a precondition to vicarious liability in child abuse cases. However, not only do the “parental” cases have a particular relevance to the facts of this appeal, they show how high the courts have set the bar before imposing no-fault liability. I think Huddart J.A. was correct in this case in the B.C. Court of Appeal to emphasize job-created power as the most relevant source of “connectedness” (p. 7) to the present appeal. Of course, other power relationships have also been held to supply the necessary “strong connection” in different fact situations. In the United States, the cases suggest that job-created authority is sufficient, for example, if it could be expected to intimidate a reasonable individual in the shoes of the victim. Thus the Supreme Court of California dealt with police power in Mary M. v. City of Los Angeles, 814 P.2d 1341 (1991). The majority of that court, sitting en banc, found the City of Los Angeles to be liable for the rape of a motorist by a police officer. The majority concluded, in terms of the Salmond test, that the rape had occurred in “the course of employment”. A police officer, in uniform, found a motorist impaired while driving, and instead of taking her to the police station, he took her to her house and raped her. He was convicted and sent to prison. The issue was whether his employer should be held vicariously liable to provide financial compensation. The majority of the court found that in view of the significant power and authority granted to the officer by the City, which included the power to detain persons at gunpoint, place them in handcuffs, remove them from their residences, frisk them, and even use deadly force, “it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct” (p. 1350). In other words, the manifest power inherent in the job-created role of police officer made the employer liable for its abuse. By contrast, the job-created power of a high school teacher over his pupil was considered by the same court to be insufficient to impose vicarious liability in John R. v. Oakland Unified School District, 769 P.2d 948 (Cal. 1989), discussed below.

Conclusion on the Stage 1 Analysis of the Case Law

[65] It is as important on this subject as elsewhere to look at what courts do, and not merely at what they say. Courts and commentators have acknowledged that the modern articulation of rules governing vicarious liability is largely an attempt to rationalize or explain the existing case law. As noted by La Forest J. in London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, at p. 336, this articulation is “an attempt by the law to give some formal, technical explanation of why the law imposes vicarious liability”. Adoption by this Court of the “enterprise risk” theory in Children’s Foundation was an effort to explain the existing case law, not to provide a basis for its rejection.

[66] Unless we seek to overrule rather than explain the existing law, I conclude as a result of the first step of the Children’s Foundation analysis that the existing case law does not support the imposition of vicarious no-fault liability on the respondent in this appeal.

Stage 2: Consideration of Policy

[67] The “enterprise risk” rationale holds the employer vicariously responsible because, however innocently, it introduced the seeds of the potential problem into the community, or aggravated the risks that were already there, but only if its enterprise materially increased the risk of the harm that happened. Once materiality is established under the “strong connection” test, the imposition of no-fault liability is justified under the second phase of the analysis, as set out in Children’s Foundation (para. 41) by policy considerations, including in particular:

(a) Compensation; and

(b) Deterrence.

These policy considerations have to be balanced with a measure of fairness to the employer and adherence to legal principle because standing on their own these particular policies will generally favour vicarious liability, i.e., a solvent employer will almost always be in a better position to provide effective compensation to an assault victim than the assailant, and the higher the likelihood of financial liability on the employer, generally speaking, the more potent the deterrent. These pro-liability policies have therefore been restrained historically by a recognition that competing social objectives also have to be weighed in the balance. Professor Fleming, for example, explains that initially the common law held employers generally liable for all of the torts of their employees, a position that was abandoned in response to the forces of economic change and the explosion of commerce that followed the industrial revolution (Fleming, supra, at p. 409).

[68] The Court made it clear in Children’s Foundation (at paras. 47 et seq.) that there is no exemption from the ordinary rules of vicarious liability for non-profit organizations. Immunity from direct or vicarious liability is a matter for legislative consideration (see generally R. Flannigan, “The Liability Structure of Nonprofit Associations: Tort and Fiduciary Liability Assignments” (1998), 77 Can. Bar Rev. 73, at p. 90). It is nevertheless relevant to point out to those who contend for an expansion of no-fault liability based on policies of compensation and deterrence that imposition of no-fault liability does not necessarily achieve a comparable result when applied to non-profit organizations as it does when applied to commercial organizations. If the objectives of effective compensation and deterrence are not advanced to the same extent or in the same way, these differences in function or performance undercut the argument for expansion and may indeed call for a measure of judicial restraint.

(a) Compensation

[69] As stated by McLachlin J. in Children’s Foundation (at para. 30), the law seeks “to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee”. Vicarious liability is thus seen as a no-fault mechanism for spreading the loss over the customer base of the employer on the theory that “a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise” (per McLachlin J., at para. 30, quoting Fleming, supra, at p. 410). In London Drugs, supra, La Forest J. observed that “[v]icarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents” (p. 339).

[70] Some commentators have less elegantly characterized this aspect of public policy as primarily a search for deep pockets (Critchley, supra, per McEachern C.J.B.C., at p. 506; G. H. L. Fridman, The Law of Torts in Canada (1990), vol. 2, at pp. 315-16; P. S. Atiyah, Vicarious Liability in the Law of Torts (1967), at p. 22; T. Baty, Vicarious Liability (1916), at p. 154). As Professor Fridman states (at pp. 315-16):

In truth, however, as some judges have recognised and accepted, the reason why vicarious liability has been incorporated into the law of torts, when, generally speaking, it has not been accepted in the criminal law, is because the purpose of the law of tort, in contrast with that of the criminal law, is compensation, not punishment; therefore, it is desirable that the plaintiff should be able to make liable someone who is financially capable of satisfying a money judgment awarded the plaintiff in respect of his injuries or loss.

The same point is made in different words by Professor Atiyah (at p. 22): “Accordingly if the victims of torts are to be compensated for their losses this must, in general, be done by finding someone other than the actual tortfeasor on whom liability is to be imposed.”

[71] The “strong connection” test limits the ability of a court to reach into an employer’s deep pocket simply because it is there. In the case of a non-profit corporation such as the respondent, however, there is the further reality that the employer does not operate in a market environment and has little or no ability to absorb the cost of such no-fault liability by raising prices to consumers in the usual way to spread the true cost of “doing business”. It has no efficient mechanism to “internalize” the cost. This is not to say that such employers should escape vicarious liability on that account. Nor is it to suggest that ability to pay is a necessary precondition to the imposition of such liability. It is simply to suggest that the Court would be hard pressed to enlarge no-fault liability in this appeal based on a particular policy justification that has little or no application to the broad category of non-profit “enterprise” that we have here under consideration.

(b) Deterrence

[72] Deterrence is another key policy reason supporting vicarious liability, yet it too has to be assessed with some sensitivity to context, including the nature of the conduct sought to be deterred, the nature of the liability sought to be imposed, and the type of enterprise sought to be rendered liable.

[73] As to the nature of the conduct, an employee who commits a sexual assault is committing a crime. Society has already placed a high deterrence factor on such conduct: the tortfeasor can face up to ten years in jail for sexual assaults (Criminal Code, R.S.C., 1985, c. C-46, s. 271). There may be little an employer can do in reality to deter such conduct in its employees if the possibility of ten years in jail is not sufficient. Jahnke J. made this point in Ciarochi, supra, at p. 22:

It is difficult if not impossible for an enterprise to structure inducements and precautions to deter sexually inappropriate conduct toward children. While a business enterprise and its employees might foresee a physical altercation or a safety violation on the shop floor and negotiate means to deal with it, including inspections, procedures, risk sharing, and personnel actions, the sexual abuse of children by caregivers is rarely foreseen and is always surreptitious. Conventional incentives and disincentives used by enterprises simply do not work to deter compulsive sexual misconduct.

[74] As to the nature of the liability, an undue emphasis on the deterrence factor may blur the line between vicarious liability and negligence. This was a point made by the Supreme Court of California in John R., supra, where the court en banc considered a claim of vicarious liability against a school district where a teacher invited a child to his home as part of a school-authorized program, then sexually assaulted him. Job-created activities in the privacy of the teacher’s home obviously generated a higher level of “enterprise risk” than did the Club’s activities in the present appeal, yet a majority of the Supreme Court of California denied vicarious liability, stating, at p. 956, note 10:

Thus, to the extent the extracurricular program involved in this case may have lacked certain prudent safeguards, such as requiring the written permission of a child’s parents before the child could participate or requiring the presence of other children or adults if the activities were to occur in a private location away from the school, we think these factors relevant mainly to plaintiffs’ claims against the district based on its own alleged negligence and not to the policy question. . . . [Emphasis in original.]

There is much to be said for developing and refining the paths of potential direct liability against employers which introduce child-related enterprises into the community, but that is not the issue before us on this appeal.

[75] As to the nature of the enterprise sought to be held liable, the imposition of no-fault liability in this case would tell non-profit recreational organizations dealing with children that even if they take all of the precautions that could reasonably be expected of them, and despite the lack of any other direct fault for the tort that occurs, they will still be held financially responsible for what, in the negligence sense of foreseeability, are unforeseen and unforeseeable criminal assaults by their employees. It has to be recognized that the rational response of such organizations may be to exit the children’s recreational field altogether. This is particularly the case with unincorporated groups, whose key members may find themselves personally responsible as the “employer” for the unforeseen criminal acts of a deviant employee; see Professor Atiyah, supra, at pp. 387 et seq., Bradley Egg Farm, Ltd. v. Clifford, [1943] 2 All E.R. 378 (C.A.), per Goddard L.J., at p. 381, referred to but distinguished by Schroeder J.A. in Dodd v. Cook, 1956 CanLII 133 (ON CA), [1956] O.R. 470 (C.A.), at p. 486; and, in a non-employment context, Olinski v. Johnson (1997), 1997 CanLII 603 (ON CA), 32 O.R. (3d) 653 (C.A.). Children’s recreation is not a field that offers monetary profits as an incentive to volunteers to soldier on despite the risk of personal financial liability.

[76] I agree entirely with McLachlin J. in Children’s Foundation, para. 54, when she says that “[t]he suggestion that the victim must remain remediless for the greater good smacks of crass and unsubstantiated utilitarianism.” The issue here, however, is whether the “greater good” would be unnecessarily sacrificed by a judicial shift in policy that does not in the end provide the effective remedy that is desired.

[77] In the context of a public school board, the Supreme Court of California expressed a related concern in John R., supra, at p. 957:

[W]e see a significant and unacceptable risk that school districts would be dissuaded from permitting teachers to interact with their students on any but the most formal and supervised basis.

A public authority such as a school board will typically have a greater capacity for loss-spreading and deterrence management than a volunteer, non-profit organization such as the Club. Nevertheless, I think the California court is correct to point out that in an understandable desire to help victims of child abuse, courts ought not to be oblivious to the societal ramifications of the proposed solution.

Conclusion from the Stage 2 Policy Analysis

[78] Applying the Children’s Foundation policy analysis, and despite the serious reservations I have mentioned about the extent to which non-profit organizations will be able to advance the policy objectives therein discussed, I accept nevertheless that imposition of no-fault liability here will be of some benefit to some victims. I also accept, of course, that “fairness” to these non-profit organizations is entirely compatible with vicarious liability provided that a strong connection is established between the enterprise risk and the sexual assault. Given the weakness of the policy justification however, I think the respondent and other non-profit organizations are entitled to insist that the strong connection test be applied with appropriate firmness. My disagreement with the trial judge ultimately rests on my view, respectfully, that his judgment in favour of the appellants represented an unfortunate dilution of that requirement, as I will now discuss.

Application of the Analysis to this Case

[79] To find a strong connection, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. In Children’s Foundation at para. 41, the Court suggested that five factors (at least) could be relevant in assessing whether an employer created or materially enhanced the risk of an employee committing an intentional tort and thereby incurred no-fault liability. These were:

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;

(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d) the extent of power conferred on the employee in relation to the victim;

(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

[80] The key to this case, in my view, is that the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded Griffiths to abuse whatever power he may have had was slight. The sexual abuse only became possible when Griffiths managed to subvert the public nature of the activities. The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor:

(1) The Club provided Griffiths with the opportunity to work with children.

(2) While it was undoubtedly part of Griffiths’ job to develop a positive rapport with the children, the relationship envisaged by the Club had no element of intimacy comparable to the situation in Children’s Foundation.

(3) While Griffiths might come into occasional physical contact with children by reason of his job, e.g., steadying a child on a piece of gym equipment, the authorized “touching” had no more to do with parenting, nurture or intimacy than could be said of a normal adult reaching out to steady a child who, e.g., tripped over a carpet.

(4) Griffiths enticed each child to his home to cultivate a one-on-one relationship. The Club activities did not require the Program Director to be alone with a child off Club premises and outside Club hours. Such a practice was explicitly prohibited after 1988.

(5) Griffiths established his own bait of home attractions, such as video games, that had nothing to do with Club activities. It was not part of his job to entertain children at home after hours.

(6) Unlike the situation in Children’s Foundation, the appellants’ mother was a parental authority interposed between the assailant and his victims. She gave permission to the children to go to Griffiths’ home. No doubt, knowing of Griffiths’ job at the Club, she did not regard him as a stranger or as a threat. Nevertheless, it must have been evident to a reasonably cautious parent that Griffiths’ home entertainment was not part of the Club’s program.

(7) Once the children were drawn into his home-based activities, Griffiths gradually increased the level of intimacy, initially with Randy and subsequently with Jody, in terms of banter and sexually suggestive talk. This was not only unauthorized, it was antithetical to the moral values promoted by the Club.

(8) Eventually, when Griffiths saw his chance, he committed the assaults.

[81] If it was the law that the provision of “opportunity” was enough to render the employer liable, then the progression from step 1 to step 8 might be seen as a series of “but-for” opportunities sufficient to impose liability. But that is not the law. I accept that “but for” the opportunity created by Griffiths’ employment at the Club, it is unlikely these assaults would have occurred in the way that they did. As pointed out by McLachlin J. in Children’s Foundation (at para. 37), however, the relevant nexus, if it exists, is between the job-related conduct at step one and Griffiths’ criminal assault at step eight. It is not enough to postulate a series of steps each of which might not have happened “but for” the previous steps. Where, as here, the chain of events constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify “no fault” liability. Direct liability would attach, of course, if the employer could be found derelict in respect of any of its own responsibilities towards these children. However, this appeal has been argued on the assumption that there is no such fault on the part of the employer.

[82] My colleague finds that because the Club’s formal constitutional objectives include the provision of “behaviour guidance and to promote the health, social, education, vocational and character development of boys and girls” (para. 16) it must be taken to have “encouraged an intimate relationship to develop between Griffiths and his young charges” (para. 17). With respect, using words like “intimate” and “trust and power” to describe the ordinary relationship between recreational directors and their after-school participants robs these words of their capacity to differentiate situations where vicarious liability may be appropriate from those where it is not. As noted by Professor H. J. Laski over 80 years ago in “The Basis of Vicarious Liability” (1916), 26 Yale L.J. 105, at p. 114:

The real problem in vicarious liability, in fact, is not so much the rectitude of its basal principles, as the degree in which they are to be applied. [Emphasis added.]

I do not accept that an enterprise that seeks to provide a positive role model thereby encourages intimacy. Nor do I believe that “mentoring”, as such, puts one on the slippery slope to sexual abuse. If it did, any organization that offered “role models” would be looking at no-fault liability. Most organizations dealing with children inevitably involve role models, from the neighbourhood soccer league to Girl Guides to the Duke of Edinburgh awards programs. “Mentoring” is characteristic of everything from Air Cadets to Big Sisters. I can find in the evidence nothing to suggest that Griffiths’ own role required anything more than the establishment of a “rapport” with the children. There is no suggestion that physical intimacy would be either necessary or desirable. Intimacy between Griffiths and one or more of the members, even if maintained on a wholly non-sexual level, would have been destructive of the Club’s program, leading to problems of favouritism, feelings of exclusion, and dissension.

[83] The Club did not confer any meaningful “power” over the appellants. They were free to walk out of the Club at any time. They went home to their mother every night. In the circumstances I agree with the point made by Newbury J.A. in the British Columbia Court of Appeal in the Children’s Foundation case (1997), 1997 CanLII 10834 (BC CA), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry), at pp. 39-40:

Where, for example, a teacher uses his or her authority to develop a relationship with a pupil in his or her class and then abuses that relationship by approaching the child at a park during the summer holidays, it may be said that by employing the teacher and giving him or her some authority (albeit not parental authority) over the child, the teacher's employer "made the wrong more probable". But it is likely vicarious liability would not be imposed on the employer given the absence of a close connection between the teacher's duties and his or her wrongful acts. To put the matter another way, the fact that the teacher took advantage of his opportunity at the school to develop a relationship with the child is not enough: something more is required a close connection between the teacher's duties and his or her wrongful acts to render the school board liable without proof of negligence or other fault on its part. [Emphasis added.]

[84] Griffiths took advantage of the opportunity the Club afforded him to make friends with the children. His manipulation of those friendships is both despicable and criminal, but whatever power Griffiths used to accomplish his criminal purpose for personal gratification was neither conferred by the Club nor was it characteristic of the type of enterprise which the respondent put into the community. That being the case, I do not think the one act of sexual touching which occurred on the Club van, given that it was a minor and incidental part of Griffiths’ ongoing campaign of sexual predation outside Club facilities and outside Club hours, was sufficient to trigger no-fault liability. As McLachlin J. pointed out in Children’s Foundation at para. 45, the mechanical application of time and place criteria obscures the more fundamental analysis.

[85] Finally, as to the vulnerability of potential victims, my colleague notes at para. 18 that the trial judge in this case found that “Griffiths exercised a ‘god-like’ authority over his victims”. The only reference to “god-like” in the trial judgment is at para. 12 in relation to the intercourse that occurred between Griffiths and the appellant Jody as follows: “She did not assist and did not resist. She was scared and confused. He had been a mentor to her and had seemed almost god-like and because of that she had some thought that it must be okay.” It may have been part of Griffiths’ plan to appear to be “god-like” to his victim, but the question is whether such a “god-like” image can be attributed to anything intended by the Club, or was a foreseeable element of its “enterprise”. The answer, in my view, is no. The liability of the Club cannot be determined solely on the basis of the subjective reaction of the victim. There is no suggestion in the evidence that an ordinary girl of Jody’s age and background, knowing the nature of Griffiths’ employment as an organizer of after-school recreation, would have considered that he had “god-like” job-created status. The need to relate the victim’s impressions to some objective inducement, express or implied, by the employer was noted in Armagas Ltd. v. Mundogas SA, [1986] 2 All E.R. 385 (H.L.), at p. 393.

[86] There is a natural tendency to want to impose vicarious liability for virtually all instances of abuse where the employer is dealing with children because of the inherent vulnerability of children. Vulnerability is said to justify a zero tolerance policy. This reasoning is apparent in the present case where the trial judge concluded, as stated, that “[i]f the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children” (para. 69). Nevertheless, the way in which this appeal was presented to us requires us to assume that the employer here did everything a reasonable employer ought to have done in terms of recruiting and supervising Griffiths, and in the design and conduct of its programs of which he was Director. While the vulnerability of children provides the appropriate context in which the respondent’s enterprise is to be evaluated, vulnerability does not itself provide the “strong link” between the enterprise and the sexual assault that imposition of no-fault liability would require.

Disposition of the Appeal

[87] The trial judge, upon being satisfied that the Club was liable under the doctrine of vicarious liability, did not address the question of whether the Club was also negligent (at para. 69) despite the fact that negligence was specifically pleaded by the plaintiffs. Also, the trial judge did not consider the question of whether the Club owed a fiduciary duty to the plaintiffs and hence did not consider that head of liability (at para. 66). In the result, the matter should be sent back to trial for a determination as to whether the Club is liable under a fault-based cause of action, whether it be negligence or other breach of duty, on the whole of the evidence. The present appeal, based as it is purely on the attribution of vicarious liability, should be dismissed.

Appeal dismissed, L’Heureux-Dubé, McLachlin and Bastarache JJ. dissenting.

Solicitors for the appellants: Kendall, Penty & Company, Kelowna, B.C.

Solicitors for the respondent Boys’ and Girls’ Club of Vernon: Watson Goepel Maledy, Vancouver.

Solicitors for the intervener the Canadian Conference of Catholic Bishops: Barnes, Sammon, Ottawa.

Solicitors for the intervener Wunnumin Lake First Nation: Goodman & Carr, Toronto.